Potter v. Wheat

53 Tex. 401 | Tex. | 1880

Gould, Associate Justice.

We are unable to see that the court was justified in charging the jury that defendant “had failed to show that he was evicted from any of the lands sold to him by Wheat,” and in effect withdrawing from the jury the question of deficit in the fifty-nine and a half acre tract.

The court seems to have regarded the testimony of the surveyor locating the fifty-nine and a half acre tract “according to the natural calls in the field notes, which are all to be found on the ground as called for,” as conclusively establishing the true location of that tract, notwithstanding that conclusion is repugnant to the call “for the survey on which the land is situated,” to the calls for course and distance, and repugnant to the preceding part of the deed conveying what is termed the Wheat pre-emption, in that it makes the deed convey a second time a part of the same pre-emption, and notwithstanding other opposing testimony as to the understood locality of the fifty-nine and a half acre tract. Ragsdale v. Robinson, 48 Tex., 379.

It is difficult to understand how the parties could have been so mistaken, and if they were so mistaken as to the land, it would seem that the defendant was entitled to have the defense of deficit in the fifty-nine and a half acre tract submitted to the jury. The evidence is stated very briefly, and possibly the case is not before us as it was presented to the court below. Passing upon the case as we find it, we are of opinion that the court erred in withdrawing from the jury the question of defendant’s right to deduction on the ground of eviction from the land.

Another question grows out of the exclusion of evidence, thus stated in the bill of exceptions:

“Defendant offered to prove by William Potter, defendant, that in pursuance of a special contract made between Samuel Wheat, Sr., and defendant, he, the said defendant, raised five hundred and ninety bushels of corn on the tract of land which, by the contract, he was to plant in wheat, and that he put the same up in cribs, securely protected from the weather, subject to the order of the said Wheat, and so kept the same until it was entirely destroyed by the weavil; which testimony was excluded by the court; to all of which rulings of the court the defendant, by counsel, excepts, and tenders this bill of exceptions, and asks that the same may be allowed and made a part of the record in this case, which is accordingly done.

“This is correct except in this: The ruling was that as between parties where administrator was plaintiff or defendant, the statute prohibits them testifying in their own behalf, and the effort to show what had been done with corn raised that year, in order to show payment, was rejected; there was no evidence as to how the corn was to be handled or delivered after being made; and it was in proof that plaintiff’s ancestor left early in the year and did not return, having died abroad.

“E. B. Turner,

[seal] “Judge presiding."

It was proved that by the original contract Potter was to plant in wheat, from year to year, the land then in cultivation, and the entire crop of wheat, when raised, was to be the property of the vendor, Wheat, to whom it was to be delivered from the thresher until he received the sum of twelve hundred bushels.

Alexander Walters testified that he heard Samuel Wheat say that the land he had sold to Potter had become foul, and he had agreed that Potter should plant it in corn; and that he was to take the corn on the place instead of the wheat.

Potter testified that the year Samuel Wheat, Sr., left for eastern Texas he planted same land in corn, and raised thereon five hundred and ninety bushels of corn.

Alexander Walters also testified that soon after the contract as to planting the land in corn was made, Wheat went to eastern Texas and died there a year or two afterwards, never having returned.

In our opinion the testimony of Potter as to what had been done with the corn raised, in order to show payment, was erroneously excluded.

The statute does not disqualify a party to a suit by an administrator from testifying in the case, except “ as to a transaction with, or statement by, the intestate.” R. S., art. 2248. The evidence offered was not as to what had transpired between the deceased and defendant, nor as to what statements deceased had made, but as to what defendant himself had done. Such evidence could only be excluded on the ground that the statute forbids a party from testifying at all in his own behalf in a suit against him by an administrator.

As the vendor “was to take the corn on the place,” as testified by a witness, the court appears to have been mistaken in holding that there was no evidence as to how the corn was to be handled or delivered after being made. The evidence should, we think, have been omitted. To what extent it would entitle Potter to a credit, if he allowed the corn to go to waste in the absence of Wheat, it is needless to now inquire.

The judgment is reversed and the cause remanded.

Reversed and remanded.